April 20, 2010

Good. This doesn't — of course — mean that you can't punish acts of cruelty to animals.

ADDED: Here's the text of the opinion (which I don't have time to read at the moment). There is one dissenter: Justice Alito. The law that the Court struck down was a congressional response to "crush videos." In these, high-heeled women stepped on animals until they died, which some people find sexually stimulating.

"Congress shall make ,no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

It's pretty simple really.

No law means no law abridging even the most heinous of speech.

It doesn't say no law abridging speech except that speech depicting animal cruelty. It says no fucking law abridging any speech whatsoever.

It is still OK for Hollywood to depict the killing of Old Yeller.

We should be reminded that good speech needs no protection. Only heinous, offensive speech requires protection.

The US Supreme Court needs to address a far greater issue and that is the incredible length of time it takes before they are able to restore rights the US Congress strips from us every time they pass and begin enforcing a new law.

It is taking an average of eight years for them to restore rights the legislative is stripping with impunity deliberately because the court will not move quickly.

Here is what your pals in government argued in front of an incredulous Supreme Court:

"Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs."

Get the idea this really isn't about crush videos?

The Court was simply incredulous, and warned the American people about this brazen attempt by their Congress to eviscerate the United States Constitution.

"As a free-floating test for First Amendment coverage, that sentence," wrote the Court, "is startling and dangerous."

So, I hope Bill Clinton will deign us with his fucking presence today to warn us about the "dangerous" and "startling" actions of our out-of-control government that were only stopped by the last court in the land.

The Supreme Court ourt wasn't fooled for one second by what Congress was really trying to do through the back door.

" ... the Government makes no effort to defend the constitutionality of subsection 48 as applied beyond crush videos and depictions of animal fighting. ... the Government nowhere attempts to extend these arguments to depictions of any other activities - depictions that are presumptively protected by the First amendment but that remain subject to the criminal sanctions of subsection 48."

"... However "growing" or "lucrative" the markets for crush videos and dog-fighting depictions might be," the Court wrote, "... they are dwarfed by the market for other depictions, such as hunting magazines and videos, that we have determined to be within the scope of subsection 48."

"We hold that subsection 48 is not so limited but is instaed substantially over-broad, and therefore invalid under the First Amendment."

The Court rightly recognized that the government was trying to end your subscription to Field and Stream, by alleging (but strangely not bringing to court) so-called "crush videos."

Like I said, the Congress is a fucking moron.

This was a slam-dunk case that frankly the court should have just reversed by quoting the First Amendment in its entirety.

It would be cool if they actually wrote it that way. They thought they were being very clear, but you know lawyers and words can equal just about anything. doesn't the real thrust of legal argument boil down to simply twisting words?

They thought they were being very clear, but you know lawyers and words can equal just about anything.

What's amazing is how the Court went out of its way to bitchslap the idiot attorney who argued that speech was only protected by the First Amendment to the Constitution if it could be shown to be balanced by its worth in society.

I can't find this retard's name yet. (Anybody know who argued this case before the Court?)

Ah, here's the retard who argued that speech is only free if the government deems it of societal value:

Neal K. Katyal, of Georgetown Law School.

(Parents, take note: This is the sort of moronic education you're going to pay for at Georgetown only to watch your children lose cases before the Supreme Court, which will then bitchslap your kid in their written opinion - a document that will be written in books forever."

The SCOTUS treats the list of speech unprotected by the First Amendment as a closed set of historically determined exceptions (obscenity, fraud, incitement, speech integral to criminal conduct), while leaving open the (theoretical) possibility that there might be other examples of unprotected speech yet to be discovered. Don't hold your breath.

The gov't tried to defend the statute by (a) quoting older cases saying that speech having no redeeming social value doesn't get First Amendment protection; (b) saying that this statute is saved by its 'savings clause,' exempting from its prohibitions any speech having 'serious' value; and (c) claiming that the gov't, as a act of prosecutorial discretion, will only enforce the statute in 'extreme' cases where the material depicts plainly cruel conduct.

The majority brushes aside the SCOTUS's prior statements about "no redeeming social value" as language merely descriptive of the historically determined exceptions, rather than proscriptive language limiting the First Amendment's reach. That's fine if you want a sound bite, but really amounts to saying that there is no compelling justification for the historical exemptions other than that they've always been accepted. In form that's a kind of originalist argument, without all the citations to 18th century treatises, dictionaries and the like; in substance, it's a recognition that life doesn't permit an absolutist application of the First Amendment coupled with a refusal as a matter of policy to accept new exceptions.

As for the "serious" savings clause, the Court dismisses the gov't's argument by saying that it had to take the "serious" criterion seriously -- which leaves the statute overbroad because most speech is not serious at all. That's a rare bit of commonsense -- it's nice to see the SCOTUS say that the First Amendment covers silly chatter just as much as it does the Great Books.

The majority is scathing in its rejection of what it calls a free-floating cost-benefit approach to the First Amendment (its description of the gov't's position) -- i.e., speech is protected whether or not Congress deems its value to be outweighed by its harmful effects. It is equally dismissive of the gov't's argument that prosecutorial restraint can save an overbroad statute -- the First Amendment doesn't involve a concept of noblesse oblige, says the Court.

Perhaps the most interesting aspect of the decision (apart from the zingers, of which there are many), is the Court's refusal to dispose of the case on an 'as applied' basis. They offer a footnote (!) suggesting that an 'as applied' challenge wasn't preserved, but that argument is neither convincing nor compelling. For its own reasons, the Court wanted to swat down this statute and it did so by finding it facially overbroad.

All in all, not a bad day. I wonder if this will be Stevens' sway song in the 'expansive opinion striking a blow for constitutional freedoms' sense.

IANAL, but it seems that Alito's dissent was, in part, that the Third Circuit should have first determined whether the videos were Constitutionally-protected speech before deciding whether the statute itself was constitutional--that the Third Circuit wimped out.

Please let's don't crap all over Katyal. I'm pretty sure that he, too, recognized the dog of a case he'd been handed, and he made a decent go of it. It isn't his job to say "this is a stupid thing and you're stupid for doing it", it's his job to argue the case.

Besides, as Richard Dolan points out, the case history for this sort of thing is pretty much all case-by-case exceptions, which means you don't know whether or not the Court will see a restriction as acceptable until you argue the case.

This is a good ruling which is in the finest traditions of American jurisprudence, which is sadly unusual nowadays.

Bull fighting, bull baiting, and even dog fighting and cock fighting were at one time all considered quite respectable. Modern sensibilities tend to disfavor such sport, but this should not silence all debate of the subject. Thus, depicting sports that contain what is now considered animal cruelty can in fact be political speech, and this is precisely what the first amendment protection of free speech was meant for.

This is, of course, easily dismissed bullshit. And the court saw right through it.

The government cannot even find such a video to bring to court, but has its officers of the court commit perjury in front of the Supreme Court by alleging there is a "substantial growing market" in such videos.

Horse hockey.

The Democrat Party don't want people to own guns - because they're afraid we'll kill them if they try to govern us the way they aspire to.

It's as simple as that. First step is to outlaw depictions of hunting (which this law attempted to do). Then outlaw actual hunting as cruel. Then there won't be any need for rifles, so they can be outlawed. Handguns would be next. Then gulags and a New American Holocaust led by the Jew hater Barack Obama.

It's a good thing there are some people on the Supreme Court can see through this bunch.

I think the larger question is, should depictions of death be it human or animal through the visual medium be protected speech? Personally, I'm of two minds on this. For me it is all based on context. Is it the actual depiction that matters or is it the end result of that depiction that is the issue?

Whenever I see a case like this, it makes me wonder, are there no laws banning the underlying activity, such that you have to make speech involving the activity illegal? If some dude goes out of his way to video tape a dog fight, you are going to prosecute him for recording the fight? Why not simply prosecuting the people actually causing the mistreatment?

As a man who loves animals, I'm actually a little surprised that SCOTUS stayed away from making a decision on these types of videos. They certainly have had no issue with certain types of pornography, so why not a clear case of animal cruelty? Did they see crush videos as a function of pornography because they confer sexual gratification to some?

"... but let me know how you feel about the likely future increase in animal crush videos and their like."

There is no such thing as "animal crush videos" and their like.

I defy you to point me to one, or prove to me that you've ever seen one.

They are, like "snuff films," an urban myth.

And the reason that I know they are an urban myth is that the government is unable to produce one in a court of law to prove that they actually exist - much less that there is a "growing market" for them.

Neal K. Katyal committed perjury before the Supreme Court of the United States by alleging such evidence exists in his brief.

He cannot produce a single "animal crush" video, or prove that such films are routinely available in the market.

Anything that is possible for a human to do has been captured on video or will be shortly.

Holding a camera should not be illegal unless you are using it to beat someone. Prosecution should be limited to the illegal act not the viewing of it. We have video of the killing of thousands on 9/11 or hundreds of thousands at Hiroshima. After that, how can we make a video of a gerbil dying illegal?